§ 7.22 p.m.
§ Report received.
§ Clause 4 [Increased penalties under Part I]:
§ Lord McCarthy moved Amendment No. 1:
Page 4, line 31, at end insert:
("and the court, in deciding upon the penalty for an employer guilty of any such offence, shall take into account the extent to which he has consulted with safety representatives or safety committees within the meaning of section 2 of this Act").
§ The noble Lord said: My Lords, in moving Amendment No. 1 I shall speak also to Amendment No. 4 since both amendments seek to do much the same. Essentially they seek to do something about penalties; they seek to link penalties to the extent to which an employer has consulted existing safety committees or safety representatives within the meaning of the Act.
Amendment No. 1 deals with the proposed amendment to the Health and Safety at Work etc. Act 1974 on the face of the Bill which provides additional penalties for health and safety offshore; that is to say, imprisonment on conviction for up to two years, a fine or both. To that increase in penalty we add the amendment, which states that the court,
in deciding upon the penalty for an employer guilty of any such offence, shall take into account the extent to which he has consulted with safety representatives or safety committees within the meaning of section 2 of this Act".
§ We would argue that an amendment of this kind, which we were pleased to discover was within the compass of the Long Title, is in line with what Lord Cullen said about safety committees, and in line with and pursuit of the objective of the Government when they said that they accepted every recommendation in the Cullen Report.936
§ That amendment was tabled in order to deal with the problem of safety legislation offshore. But in case it is said by the Government or any Member of the House that that would place a special tariff on punishment for offshore employers, we added Amendment No. 4, which makes a similar provision for industry generally. Therefore the same conditions apply to all employers. If the Government wish to accept Amendment No. 1 but not Amendment No. 4, that is something we can consider.
§ The House will remember that in his report Lord Cullen was concerned to strengthen the role of safety representatives. Three specific recommendations were made in the report—27, 30 and 31—which asked for various points to be laid down in order to strengthen the role of workers in relation to workplace safety on oil rigs. They asked the regulatory body—the Health and Safety Executive, the operators or the contractors—to support and encourage the involvement of the workforce in safety. The recommendations proposed that safety representatives should be protected against victimisation by Section 58 of the Employment Protection Act applying to them. Recommendation 31 said that the 1989 regulations should be modified to the effect that the training of safety representatives was paid for.
§ At Committee stage we said that we found none of those proposals in the Bill. At that time we sought to introduce an amendment to include some of them. This time we managed to put the amendments before the House. We are trying to meet the implementation of the Cullen Report in full. I beg to move.
§ Lord Rochester
My Lords, I added my name to the amendments and am glad to support them. I congratulate the noble Lord, Lord McCarthy, for the ingenious way in which he managed to bring to our attention the desirability of involving employees in the promotion of safety under a clause in the Bill which deals with penalties for contravening safety requirements.
At Second Reading, and again in Committee, I made plain my anxiety that, despite the recommendations of Lord Cullen, the Bill contains no reference to the value of safety committees and safety representatives as a means of helping to enforce the principle that each employee is responsible for his own and his fellow workers' safety. On each occasion the noble Viscount, Lord Ullswater, told us why changes could not be made to the 1989 safety representatives and safety committee regulations under the 1974 Act until the Bill had been enacted, thus making the regulations statutory provisions, and until the regulations had been reviewed. The amendment provides another way to induce employers in the meantime to consult with representatives or a safety committee as a means of improving provision for the safety of employees.
The amendments do not seek to prescribe specific penalties for offences. Their effect is simply to oblige the courts, before reaching their conclusions, to take account of the extent to which employers have consulted safety representatives or a safety committee. They are therefore modest proposals. I regard the need for employee involvement in safety matters as important. I am happy to support the amendments as 937 one way of advancing the practice without further delay. I hope that the Minister will respond sympathetically.
§ Lord Auckland
My Lords, I declare an interest as a vice-president of the Royal Society for the Prevention of Accidents although I am not sure that offshore installations come strictly within the ambit of that organisation. However, I hope my noble friend the Minister will seriously consider the amendment. I confess that I have never been on an oil rig but I have flown over one. Following the Piper Alpha disaster and some subsequent near misses, the reasoning behind the amendment is sound.
I believe that safety committees do a very important job. Accidents on offshore installations are often very much more serious than accidents in the factory or even on the roads because of the obvious combustible implications. The House should give serious thought to this matter. I hope that my noble friend the Minister will give consideration to the amendment.
§ 7.30 p.m.
§ Viscount Ullswater
My Lords, I start by congratulating the noble Lord, Lord McCarthy, on his ingenuity in introducing this subject into the part of the Be11 dealing with offences. I must oppose it and shall tell the noble Lord why in a minute.
Amendment No. 1 deals exclusively with offences concerning certain offshore health and safety regulations. It complements the similar Amendment No. 4, which the noble Lord has put forward in relation to onshore offences, and which we are taking with it.
Before replying to the amendment, it might help if I were to remind noble Lords of the legal requirements upon employers to consult their employees. Offshore, these are different from the requirements onshore under the Health and Safety at Work etc. Act 1974. The requirement to consult offshore is set out in the Offshore Installations (Safety Representatives and Safety Committees) Regulations 1989 made under the Mineral Workings (Offshore Installations) Act 1971.
Onshore, the requirement to consult is set out in Section 2 of the Health and Safety at Work etc. Act 1974. Section 2(4) gives recognised trade unions the right to appoint safety representatives to represent employees in consultations with their employer, about health and safety matters. The Safety Representatives and Safety Committees Regulations 1977 state that if requested by two or more safety representatives, the employer must set up a safety committee. Section 2(6) of the Health and Safety at Work etc. Act requires employers,to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures".Failure to comply with Section 2(6) is an offence and leaves the employer open to prosecution.
I should explain that Amendment No. 1, dealing with the offshore regulations, could not as drafted achieve its objective because of technical defects. That is because it refers to safety representatives and safety 938 committees within the meaning of the Health and I Safety at Work etc. Act. As I have explained, that would not cover offshore representatives and committees, who are elected or established under separate legislation. I appreciate that that is a technical matter which I am sure could be resolved, but there are good reasons why the Government do not consider that the amendment is worthwhile even if corrected. They are essentially the same as those which apply to the onshore amendment. I will therefore deal with the arguments together.
The Government recognise and welcome the valuable role played by safety representatives and safety committees, both on and offshore, in ensuring a healthy and safe workplace. My noble friend Lord Auckland should be in no doubt as to the Government's intention in this matter. Both these amendments appear to seek to enhance that role by proposing that courts impose an additional penalty upon employers who fail to consult representatives or committees properly. The Government do not believe that this amendment would have the desired effect and we oppose it for a number of reasons.
First, it applies only to those employers who have safety representatives and safety committees. Those who do not would escape its provision. It would be unjust if a court were to inflict an additional penalty upon an employer who had consultation arrangements which may have failed in a particular instance, but could not apply an equivalent test to an employer who did not have any consultation arrangements. Where representatives exist, the law already provides penalties for failure to consult them.
Secondly, there would be nothing to prevent a court from reducing a penalty, because the employer had properly consulted. In effect, the employer could argue that because they were consulted, the safety representative or committee had shared the responsibility for the action which led to the offence. In other words, the employer could argue for a reduction of his liability for the offence on the grounds that the representative or committee had contributed to the act or omission which led to the offence. I am sure that no one in this House would wish to see the onus of responsibility shifted in that way.
Finally, by asking the court to take into account whether or not an employer consults his workforce, the court's attention could be drawn away from other equally important areas of health and safety management. For example, has the employer produced an effective health and safety policy? Have hazards been identified and risks adequately assessed? Have employees received the information and training necessary for their health and safety? In any health and safety case, the prosecution has the opportunity to draw to the court's attention any matter which may be relevant to the proceedings. The danger of this amendment is that in time it could cause courts to give disproportionate attention to consultation. I do not say that this will necessarily happen, but it could. I hope that in the light of my explanation the noble Lord will feel able to withdraw his amendment.
§ Lord McCarthy
My Lords, I cannot take credit for the ingenuity which enabled this matter to get as far as 939 the Marshalled List. The ingenuity bears the mark of my noble friend Lord Wedderburn. However, I do not believe that that ingenuity has got very far. The Minister tells us several things. He tells us that although our amendment is not perfect he could improve it if he wanted to. That is not really a point of substance because he clearly does not want to improve it. He also tells us that one of the reasons he does not want to is that it would be unfair to the employers who would not escape the consequences of the measure because there would be other employers who would escape as they do not have safety committees. If that were the problem the Government could remedy it by enacting legislation to extend safety committees across the board. There is no reason why the Government should not do that.
If the Government do not like a situation in which there is one set of employers with safety committees who have a set of duties in regard to safety which another set of employers do not have, they could have done something about that. But they have done nothing about it for 12 years. If they have allowed that situation for 12 years, then I do not see why they cannot allow it in relation to this amendment.
The Minister then said that, although the amendment might be a good thing because he is in favour of safety, he is not in favour of giving more power to the representatives who want to ensure safety. He is against that because it might draw interest away from other things. We say that if that interest was directed towards safety there would be few issues which could draw it away from something as important as safety.
The final point made by the Minister is a contradiction. He said that there is a deep danger that in time so much concern will be given to consultation that it will be disproportionate. The fact is that the Minister has simply asked the office to list as many objections as it can, whether they hang together or whether they are logical or not, and he refuses our amendment. I see no point in dividing the House at this stage and I withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 2 not moved.]
§ Baroness Turner of Camden moved Amendment No. 3:
§ Page 5, line 10, leave out ("and (5)").
§ The noble Baroness said: My Lords, this is a fairly simple amendment and it might have been better if we had tabled it at Committee stage, but it has only recently come to my notice.
The Bill as it presently stands proposes that a paragraph of Section 33 of the Health and Safety at Work etc. Act shall cease to have effect. Paragraph 5 of Section 33 to which it refers reads as follows:
Where a person is convicted of an offence under subsection (1) (g) or (o) above, then, if the contravention in respect of which he was convicted is continued after the conviction he shall (subject to Section 42(3)) he guilty of a further offence and liable in respect thereof to a fine not exceeding £50 for each day on which the contravention is so continued".
§ I do not see why this section should be repealed simply because the Bill proposes to increase penalties. The 940 point about this particular section is that it contains provisions for a daily fine until a contravention has been put right. It may be argued that £50 a day is not very much. The important point about it is that it is a daily penalty until there has been a correction. That is an important proviso. I do not see why it has to be repealed on the basis of this Bill. There might of course have been a reason to increase the amount of the daily fine. But the Government have not done that —the Bill seeks to wipe it out altogether. It is a fairly small point, and I shall be glad to hear the Government's explanation. I beg to move.
§ Viscount Ullswater
My Lords, perhaps it would be helpful if I explained the Government's reason for seeking to repeal the provision in Section 33(5) of the Health and Safety at Work etc. Act. I hope your Lordships will forgive me if I emphasise once again the Government's determination to get the level and structure of these penalties right. In pursuit of this, we looked very carefully at the provision in question.
The key reasons for repealing that provision are as follows. First, the reason why it was decided to repeal this provision at this time is because this Bill would give magistrates access to much higher penalties for the offences of flouting notices or remedy orders. This provision will give magistrates much greater latitude when imposing penalties. They will therefore have the powers they need to take into account the continuation of the offence, even where this factor is insignificant in itself. In addition, magistrates will still be able to refer cases up to Crown Courts where fines are unlimited.
Secondly, in recent years sentencing policy has moved away from the use of daily fines. This is because daily fines have the effect of drawing the courts' attention to one particular aspect of an offence; its longevity. This could be to the detriment of other (perhaps equally important) factors which the court might wish to take into account. Thirdly, we no longer think it necessary to have a provision for a daily fine in the Health and Safety at Work etc. Act. Indeed, we are not aware that the daily fine is used in this context. If a company is prosecuted a second time for failing to obey the same notice, the prosecution would bring this to the court's attention. The court would then be free to take this into account in determining the penalty.
I hope that in the light of my explanation of Government policy the noble Baroness will feel able to withdraw the amendment.
§ Baroness Turner of Camden
My Lords, I thank the Minister for that explanation, and for the detail which he has given. I was anxious as to why this particular section was to be repealed because it seemed to me that a daily fine would be some sort of further penalty. However, in view of what he has said tonight, I do not think that there is any point in pursuing this amendment and I am grateful to him. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 4 not moved.]941
§ Then Standing order No. 44 having been suspended (pursuant to Resolution of 10th December):
§ 7.45 p.m.
§ Moved, That the Bill be now read a third time.—(Vicount Ullswater.)
§ On Question, Motion agreed to.
§ An amendment (privilege) made.
§ Moved, That the Bill do now pass. —(Viscount Ullswater.)
§ Baroness Turner of Camden
My Lords, the problem with this Bill is not what is in it but what is not in it. I should like to take this opportunity of making a few comments before the Bill leaves your Lordships' House.
At Second Reading we were told by the noble Viscount that the Government had accepted all the recommendations of Lord Cullen which were made following the inquiry into the Piper Alpha disaster. It is a great disappointment to us on this side of the House, to learn that as far as this Bill is concerned the Government have not yet seen fit to do so. The Bill is a purely technical exercise transferring responsibilities to the Health and Safety Executive. We have been advised that under new regulations resources are being provided to enable the HSE to undertake these duties and to appoint specialist staff, including more inspectors. Penalties are being increased also.
We do not object to any of this. But one of the most important recommendations of the Cullen Report concerned the establishment of what Lord Cullen called). "safety culture". He rightly said that in order to establish this it would be necessary to involve the workforce. He emphasised that management at the very highest level had to be committed to the idea of safety as an absolute priority, so much so that cutting corners, as he put it, would simply become inadmissible.
On our side, we do not believe that it is possible adequately to involve the workforce without some protection against victimisation. There is no obligation upon employers to recognise trade unions—it was clear from the Cullen Report that many simply will not do so, despite the very good record unions have in training members and encouraging safe practices. Strong union organisation gives some protection against victimisation. Lord Cullen made no specific recommendations in that area, since industrial relations were outside his remit. But there surely is a need for some legislative protection.
It is not going to be easy to involve the workforce if employees fear they may be victimised if they complain or point out breaches of regulations. Many employees working on installations in the North Sea are on short-term contracts: the worry that these contract; may not be renewed if they complain can be a very real one. And of course we are in a recession with high levels of unemployment so that the pressure 942 to say nothing could be very great potentially disastrous. It is not enough to claim—as the Government do—that there us already proection against unfair dismissal. Some employees may not have been in that particular employment long enough to be entitled to take a case to an industrial tribunal. There are in any event long waiting lists, particularly if a case goes to appeal. And it could get around that such an employee is a troublemaker—thus making it much more difficult for him or her to get another contract.
Protection against victimisation is particularly important in the case of safety representatives. It is clear that Lord Cullen felt that there should be elected safety representatives—those on Piper Alpha appear not to have been elected at all, but simply to have been the supervisors themselves. However, individuals are not likely to come forward to be elected unless they can be sure of some protection if they seek to do their jobs well and conscientiously.
Lord Cullen specifically recommended the protection of safety representatives. On page 392 of Volume Two of his report at paragraph 30 he says:Safety representatives should be protected against victimisation by a provision similar to Sec 58(i) (b) of the Employment Protection (Consolidation) Act 1978.We sought at Committee stage to introduce amendments for discussion in this Chamber to try to give effect to this particular recommendation by Lord Cullen. They were ruled out of order because they were outside the scope of the Bill.
I do not quarrel with this ruling. Given the Bill is as it is, the ruling is clearly right. But it is the fault of the Government that they have limited the Bill in this way, while telling everyone concerned that they accept Lord Cullen's recommendations in full.
It is quite true that the noble Viscount has said that European directives will control whatever government is in power to introduce comprehensive legislation before the end of 1992. This may of course be quite a large task. But why is it necessary to wait until then? It would have been possible to do it immediately, simply by introducing a different kind of Bill. Why could not immediate protection against victimisation be given to the employees concerned? Surely that is due to people who are willing to come forward for election as safety representatives to protect the interests of themselves and fellow employees in what is acknowledged to be a very dangerous environment. Why should they have to wait?
I have not heard a convincing explanation from the Government. But I do not think that we have heard the last of this argument. While we do not oppose the Bill—since it gives effect to some of the recommendations of Lord Cullen—we cannot commend what the Government have done, or rather have failed to do. It is a missed opportunity—but it is worse than that: it leaves employees who deserve our support without the protection that they ought to have. The Government have not heard the last of that, and we shall seek an opportunity to return to this matter after the Christmas Recess.
§ Lord Rochester
My Lords, I shall be brief because there is not much left for me to say. At Second 943 Reading I said that on these Benches our general attitude to the Bill was one of support in so far as the Bill followed the recommendations of the Cullen Report. That remains our position. However, at that time, like the noble Baroness, Lady Turner, I expressed concern that the recommendations of Lord Cullen relating to the need for the workforce to be involved in safety, particularly through their representatives on safety committees, were not included in the Bill. On account of that omission and of the lack of provision in the Bill for other recommendations of Lord Cullen involving employment matters, such as the protection of employees from victimisation if they made adverse comments on safety, I joined in Committee with other noble Lords in criticising Clause 1 of the Bill, that being the only way in which such issues could be raised. We have reverted to the subject of safety committees and safety representatives on Report this evening—again without success.
The noble Viscount, Lord Ullswater, has reminded us that matters of that kind are to be dealt with by amending employment protection legislation as soon as a suitable legislative vehicle presents itself. I cannot see that opportunity arising before the next general election and I continue, like the noble Baroness, to regret the delay that will result.
Notwithstanding those criticisms, I should like, in conclusion, to thank the noble Viscount for the courteous and good humoured way in which he has piloted the Bill through the House and at the same time, if I may, compliment the noble Baroness, Lady Turner, and the noble Lord, Lord McCarthy, on the constructive part they have sought to play in our discussions.
§ Viscount Ullswater
My Lords, I should like to thank all noble Lords and noble Baronesses who have taken part in our deliberations for their interest in the Bill and for the way in which they have addressed the issues which obviously are of importance to them.
I have stated more than once that the Government have accepted all of Lord Cullen's recommendations in his report on the Piper Alpha disaster. I was reminded of that point by the noble Baroness, Lady Turner. The Government have no intention of shirking their responsibilities in this area. I have outlined various measures which have already been taken in carrying out this commitment, including a substantial transfer of resources to the HSC and sought to indicate what further action will be taken. I have made clear on several occasions that the Government fully accept the recommendation on victimisation of safety representatives. I have explained, as the noble Lord, Lord Rochester, indicated, that we intend to amend employment protection legislation to deal with this matter as soon as there is a suitable legislative vehicle. That will take place within the foreseeable future. This Bill cannot be that vehicle. It is an enabling Bill concerned with safety matters, and employment protection issues are outside its scope.
The noble Baroness, Lady Turner, is right. The Bill cannot and should not implement all of Lord Cullen's 944 recommendations. It is an essential enabling measure, which will allow the reform of the existing offshore safety legislation. This legislation will be replaced by the "goal setting" regulations recommended by Lord Cullen. The regulations will underpin the new safety case regime by defining the necessary standards to apply to every installation. This Bill therefore represents an important step forward in putting in place the regime envisaged by Lord Cullen.
§ On Question, Bill passed, and sent to the Commons.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.55 to 8.20 p.m.]